MEETING REPORT EXPERIENCE-SHARING EVENT ON … Experience... · Richard A. Leo et al., Promoting Accuracy in the Use of Confession Evidence: ... • AV recording risks trumping other

This meeting was made possible thanks to the financial support of the Justice Programme of the European Union. The contents of this document are the sole responsibility of the author and can in no way be taken to reflect the views of the European Commission.

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MEETING REPORT

EXPERIENCE-SHARING EVENT ON AUDIOVISUAL RECORDING OF INTERROGATIONS

IN CRIMINAL PROCEEDINGS

Friday 9 November 2018, 9.00 – 17.30

Allen & Overy LLP 52 avenue Hoche

Paris 75008

1. BACKGROUND Fair Trials and HHC organised this experience-sharing event in the context of a multijurisdictional project on the audio-visual recording of police interrogations of suspects, including minors and vulnerable persons, funded by the Justice Programme of the European Union (“Procedural rights observed by the camera – Audio-visual recording of interrogations in the EU”, the “ProCam” project). By way of background, the ProCam project is led by the Hungarian Helsinki Committee and covers Croatia, Czech Republic, France, Hungary and Italy. It examines the legal framework regarding the audio-visual recording of interrogations, as well as the practical use of and views on audio-visual recordings by the actors in the criminal procedure (criminal defence attorneys, police officers, prosecutors, judges), with special regard to vulnerable suspects and accused persons. The overall aim is to assess whether audio-visual recording is a simple and practical measure that can help fight coercive police and prosecutorial practices by creating more transparency and accountability in pre-trial proceedings. As part of this project, domestic research was carried out in each of the participating countries through a range of tools, including analysing the legal framework and jurisprudence, issuing freedom of information requests for statistical data to relevant administrations, and reviewing scientific literature. In addition, interviews were conducted with criminal justice stakeholders and former suspects to understand how in practice audio-visual recording can safeguard the effective implementation of defence rights in criminal procedures. The purpose of this event was to bring together key stakeholders from the project partner countries, as well as from Norway, the UK, and the US, to discuss perspectives on and experiences with audio-visual (“AV”) recording, as well as any issues related to its practical implementation in relation to defence rights. The first part of the meeting report focuses on comparative experience on AV recording from the US (Section 2), France (Section 3) and then Croatia, Czech Republic, Hungary and Italy (Section 4). The second part of the meeting report highlights discussions around specific themes: the introduction of AV recording in the context of children in criminal proceedings (Section 5); the importance of AV recording as a means of enhancing the reliability of evidence (Section 6); the relationship between AV recording and procedural rights, specifically the right to legal representation during interrogations (Section 7). In Section 8, participants heard a commercial perspective from a company specialised in AV recording equipment.


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PART 1: COMPARATIVE EXPERIENCES OF AV RECORDING 2. KEY LESSONS FROM THE US

a. Background

Rebecca Brown (Director of Policy, the Innocence Project) attended the meeting to share experience from the US in advocating for AV recording. The Innocence Project, founded in 1992 by Peter Neufeld and Barry Scheck at Cardozo School of Law, originally started working on exonerating the wrongly convicted through DNA testing and advocates for criminal justice reforms to prevent future injustice. The Innocence Project obtained the exoneration of 363 persons, but it is estimated that there remain thousands of wrongfully convicted in the US, some on death row. The US has 25% of the prison world population, i.e. 2.3 million people. Despite a constant drop in crime levels, the size of the prosecution services has skyrocketed from 17,000 pre-80s, when crime levels were at an all-time high with the “crack epidemic”, to 30,000 today. There is no single criminal justice system in the US but 51 different ones – each State has its own system, and there is also the federal criminal justice system. Over 90% of crimes are prosecuted at state (and not federal) level. As a result, the situation on AV recording is very patchy. In particular, AV recording is required by 25 States and for interrogations carried out by a number of Federal agencies, including the FBI, the Drug Enforcement Administration (DEA) and the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF). This means that many States do not record interrogations at all or only on a voluntary basis.

b. Wrongful convictions: the leading causes Out of the 363 cases of exoneration in which the Innocence Project was involved, 102 cases included a false confession in respect of a crime that the person had simply not committed – including by mentally able adults. Physical torture has, effectively, been replaced by psychological torture. Investigating authorities can develop a “tunnel vision” where they tend to disregard any exculpatory evidence / aspects. Coupled with a nervous suspect, 28% of those cases where DNA testing proved innocence, involved false confessions during interrogations. The main factors that lead to wrongful convictions are as follows:

1. Informants: overreliance on information provided by informants. 2. False confessions: even mentally capable adults may falsely confess as a result of fear (in

particular under the threat of the death penalty) and exhaustion, feeling “trapped” (in particular, for minors). Nevertheless, confessions trump all other forms of evidence, even DNA.

3. Eyewitness misidentification. 4. Misclassification errors: investigative authorities have poor detection skills of who is lying and

who is telling the truth. This can result in overreliance on behavioural analysis. 5. Contamination of evidence: human factors on the law enforcement side can result in

“contamination” of the interrogation. Police questioning involves two stages. First, an interview which is focused on information-seeking, with open-ended questions. Second, an


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interrogation that is accusatorial, police-dominated. Interrogating officers may not intentionally seek to mislead the suspect but may really believe their own “theory” of what happened, resulting in “unconscious fact feeding to the suspect”, whereby the police leaks information about the case to the suspect, often inadvertently, which pushes the suspect to repeat the expected story back. This will show on an AV recording of the interrogation. While physical evidence is protected from contamination through a variety of means, nothing is done in relation to oral evidence provided by suspects during interrogations. Courts do not make any determination about the reliability of evidence gathered through the police interviews. Once there is a confession, courts rely on it heavily as final evidence, and assume that it was offered voluntarily unless there is evidence of physical violence.

c. The way forward: solutions and advocacy

The Innocence Project considers that the gold standard to measure the reliability of confessions is corroboration, whereby the suspect’s statements are measured against known facts. The more the statements adhere to the known facts, the more reliable the oral evidence should be deemed. In court, defence lawyers across the country are increasingly using this principle in the so-called “fit test”1 to challenge statements and confessions made by their clients during police interrogations. The police report of the interrogation is typically not sufficiently detailed to test the reliability of the confession, whereas an AV recording provides an independent corroboration of the confession. The Innocence Project reports a number of cases where non-public specific facts about how the crime was committed are disclosed to a suspect during the interview, who then repeats them in the “confession” (known as confession contamination).2 The “contamination” can be spotted in the AV recording but not in written police reports of the interview. In its advocacy efforts for the introduction of AV recording legislation, the Innocence Project has been building a large coalition of supporters including law enforcement, government agencies, victims’ groups, the defence community, and risk management departments of insurers. The first key group to approach in any advocacy effort to introduce AV recording is law enforcement. The message needs to be that AV recording is not a negative one (i.e. accountability for police misconduct) that a positive on (the benefits of having a clear record of what happened during an interrogation). Victims’ groups can also be crucial allies, as they don’t want wrong convictions. Finally, it is important to engage both the prosecution and the defence communities. The Innocence Project found it useful to start advocating for AV recording of juveniles’ interrogations as a first step. AV recording is today also supported by the American Bar Association and the International Association of Chiefs of Police. In the Innocence Project’s experience, the main objections that are raised against audiovisual recording include:

• “suspects will stop talking”: police with experience of AV recording report that AV recording actually helps them solve crime.

• “jurors will not understand the investigative techniques”: it has been proven that actually

1 Richard J. Ofshe and Richard A. Leo suggest that test a confession’s reliability by examining whether the description of the crime offered by the defendant and the other known facts of the crime. Richard A. Leo et al., Promoting Accuracy in the Use of Confession Evidence: An Argument for Pretrial Reliability Assessments to Prevent Wrongful Convictions, 85 Temp. L. Rev. 759, 792-98 (2013). 2 See further on false confessions: https://www.innocenceproject.org/causes/false-confessions-admissions/.

https://www.innocenceproject.org/causes/false-confessions-admissions/


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jurors do understand these.

• “what if the equipment stops working?”: exceptions can be provided for such cases, in so far as they remain an exception and investment in better equipment can overcome this.

• “police will be needlessly scrutinised”: police agencies which have implemented AV recording have actually been satisfied with how it works.

Participants raised objections:

• AV recording is costly and time-consuming;

• AV recording risks trumping other procedural rights if treated as a safeguard per se (i.e. there is a risk that it could be used to argue that a lawyer’s participation in interrogations is no longer needed);

• Adversarial systems are not focused on truth-seeking but on getting a conviction, and therefore there are strong incentives to obtain a confession. On the other hand, inquisitorial systems) are focused on finding the “truth”;

• AV recording may violate the right to privacy of the suspect. At a minimum, any regulatory framework requiring the audiovisual recording requirement of police

interrogations must address the following points if it is effectively to protect the defence rights of

suspects:

• Who should be in the interrogation room?

• What angles should the camera be filming at? The Innocence Project advocates for 2 angles, one on the suspect and one on the interrogating police officer.

• How is custody and deprivation of liberty defined?

• When should the recording begin? Recordings should begin when the suspect is told his or her rights, or where a reasonable person would believe themselves to be in custody.

• What crimes should AV recording be implemented for?

• How long should the recordings be kept for?

• What consent policy should apply for the suspect or accused person?

• What sanctions and remedies are there for failures to record? The Innocence Project recommends focusing on remedies rather than sanctions (which target law enforcement agents).

• What practical training should be made available to police and other stakeholders? The Innocence Project recommends not only technical training, but also training in interviewing techniques.

• How to deal with a lack of equipment? The Innocence Project suggests that police stations share some equipment.

3. TAKING STOCK OF OVER 10 YEARS OF AV RECORDING IN FRANCE France is widely considered to be a good example in the EU, having adopted compulsory audiovisual

recording of interrogations of children suspected of criminal offences in 2000. This requirement was

extended in 2007 to suspects and accused persons charged with certain types of serious offences.

Karine Gilberg (former Head of Office of the International Affairs Department, Ministry of Justice) explained that, when the law on AV recording was first introduced, judges were in favour of AV


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recording of police interrogations but not of judicial interrogations. However, the obligation was introduced in respect of both police and judicial interrogations. The police opposed an extension of the requirement to AV record the interrogation of all suspects (as opposed to only suspects of criminal offences, which are the most serious types of offences in French law), as it would have been too time-consuming and there were not sufficient resources. Judges and practitioners reported that nobody is interested in seeing the AV recording. In French law, AV recordings can only be accessed if the defence makes a request to view them on the grounds that there is a dispute in relation to the content of the written transcript of the interview. As a consequence, it is rare for defence counsel to rely upon AV recording. By way of example, out of 200 cases handled by an instructing judge in one year, only 1 defendant requested to see the AV recording. In the recent high-profile Pastor case,3 for instance, the prosecution relied heavily upon the accused’s confession to a murder during police custody. During trial, the accused sought to challenge the confession and requested to view the AV recording. The AV recording was viewed by the court and revealed that the accused had confessed without any apparent coercion by the police. Dominique Tricaud (Attorney at the Paris Bar) explained that 40 years ago, torture was frequent in police custody, but this practice changed and police sought AV recording as part of this change. The deterrent effect on abuses and undue coercion by the police is more complex to calculate but it exists. While it is true that informal interrogations can take place during police custody outside the scope of the “recorded interrogation”, AV recording remains useful because it can help bring these informal interrogations to surface (for instance, if the AV recording shows signs of violence or hints to previous informal contacts between the police and the interrogated person). A further element of deterrence would be to hold a record or timetable of police custody showing when a person arrived, took breaks, had meals etc. The written transcript of police interrogations is a summary of what the interrogated person said, without any transcriptions of the questions. The validity of such transcripts remains the same even if the interrogated person refuses to sign it. As such, confessions still have an important role in criminal proceedings. AV recording of interrogations can be very positive but there are questions as to its usefulness. Defence counsel rarely ask to view AV recordings because of the risk of revealing that the client is lying, which is unhelpful to build a defence strategy. Martin Pradel (Attorney at the Paris Bar) considers that despite some initial resistance from the police, some things have changed in France since 2007. First, less and less violence in police stations is reported. This is not necessarily due to AV recording, but mainly to the implementation of the EU Directive on the right of access to a lawyer, which constitutes an added safeguard for the suspect or accused person and helps calm people down in a police station. Clearly there is no abuse in front of the camera itself when an interrogation is recorded. However, the current law which limits the requirement to AV record interrogations relating to criminal offences creates unequal safeguards for suspects and accused persons. From a defence perspective, Martin has experience of challenging written transcripts in several cases, and each time the client was wrong. This is because sometimes the suspect has no clear recollection of what they told the police and so asks to challenge the transcripts.

3 For further information, see a news report: https://www.bbc.com/news/world-europe-45886876.

https://www.bbc.com/news/world-europe-45886876


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In France, access to the AV recording can only be authorised by the investigative judge, who can refuse it if they think it’s not useful. The law foresees the possibility to appeal such refusal up to the Court of Cassation (Cour de Cassation). In addition, access to the recording can only be requested by the defence if they challenge the transcript thereof. But the recording is not automatically disclosed to the defence as part of the file. In contrast, in the UK, access to the file is automatic. The judge can refuse access to the AV recording, and Balazs Csire questioned whether this was a violation of the EU Directive on Access to Information, as it shouldn’t be left up to the judge to decide what is “essential material” for the defence. A CJEU reference may be a good way to clarify this aspect, as the Constitutional Court has already ruled that the AV recording is not essential (and the same question cannot be asked to the Constitutional Court once it has ruled on it). 4. KEY PRELIMINARY FINDINGS FROM EACH PARTNER COUNTRY

a. Hungary Dora Szego (Hungarian Helsinki Committee) explained that in Hungary, AV recording was only introduced in July 2018 as part of the new criminal procedure code, so experience by the criminal justice actors is still very limited. The new law introduced AV recording in limited cases, which are divided in two main cases:

1. Mandatory: for under 14 year-olds suspects and for under 18 year-olds victims of sexual crimes; and

2. Discretionary: Requested by the defendant or their lawyer, if the person requires “special treatment” on the ground of their specific vulnerability.

Balasz Csire (Attorney, Hungary) reported that multiple endpoints with videolinks and AV recording facilities have been installed in courts across Hungary, although several facilities still present issues. AV recording cannot completely eradicate the possibility of undue coercion from the police stations, as AV equipment does not capture the entire interrogation room. One participant expressed doubts about the usefulness of AV recording for the defence, as it was felt that lawyers have greater leeway to intervene in court and shape the client’s testimony if the police interrogation is not recorded. Concerns were also raised about potential resistance from pre-trial detention judges to use the recording in court, as they are likely to prefer reading 3 pages of written transcripts rather than viewing 3 hours of video.

b. Croatia Tea Dabic (Human Rights House Zagreb) explained that in Croatia, the Criminal Procedure Act was amended in 2017 to transpose EU legislation, including the Roadmap directives on the procedural rights of suspected or accused persons in criminal proceedings. AV recording was made compulsory for all interrogations, and discretionary in relation to other investigative acts. However, police stations are not all equipped with the appropriate AV recording set-up in interrogation rooms.


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Zoran Buric (Assistant Professor, University of Zagreb) explained that the main reason behind the adoption of this extensive obligation was the question of trust between the judges/prosecutors and the police in relation to the reliability of evidence gathered by the police, as interrogation transcripts are not systematically included in case-file. The incentive for the change came from the EU Directive on the right of access to a lawyer, as previously the investigative phase led by the police was not considered to be really part of the criminal procedure and not subject to judicial oversight. AV recording was however not welcomed by judges at the beginning as it would have been too time-consuming for them to view the recordings and because they did not wish to enter into potential conflicts with the police. The police were broadly opposed because of the risk that their evidence-gathering acts would be less effective. The defence community was also opposed because it considered it unnecessary to go to the police station in the first place, as evidence obtained during the police interrogation without legal counsel could not be admitted to court in any event. Despite widespread opposition from the criminal justice stakeholders, there was a broad political support for the reform which was finally adopted. The reform has been finally welcomed by the police, which has realised that strong procedural rules, including in relation to AV recording, do not compromise the effectiveness of the investigation.

c. Italy Federica Brioschi (Antigone) explained that Article 141bis of the Code of Criminal Procedure provides that any questioning of a person legally deprived of their liberty has to be AV or audio recorded, including in police custody and pre-trial detention. Even where a person has not been arrested: audio recording is compulsory in respect of interviews of vulnerable victims, including minors and people with mental health issues. However, the obligation does not extend to vulnerable suspects who have not been arrested. In practice, the police interview is always audio recorded and summarised minutes are taken, even if this is not compulsory. In Italy, the ordinary way to document a criminal procedural act is through written minutes, either integral (taken with a stenotype machine) or summarised. Judges can decide to use one or the other. In principle, summarised notes should also be accompanied by an audio recording, but this is not always the case. If the audio recording is not clear, the summarised transcript becomes the official source of the interrogation. If the suspect is foreign, they have a right to interpretation during their hearing but the process to grant this right is not streamlined and only the Italian interpretation is recorded. Rooms are equipped with generally good IT. Although recordings are accessible, judges, lawyers and prosecutors generally rely on the written transcription and do not consult the recording itself unless they have a doubt about the transcript. No sanctions are foreseen where no recording is available. However, police interrogations in Italy do not give rise to the specific issues in terms of false confessions as in the US. Usually, in Italy a person is arrested during the night in flagrancy, taken to the police station, their details are taken, and they are either sent to the nearest prison or held in police custody overnight and interviewed by the judge of the preliminary investigation the next day. There is no right to waive a lawyer, so lawyers have to be present during the interrogation. This doesn’t


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mean that the police cannot coerce the arrested person before the lawyer arrives, but any resulting statement cannot be accepted in court. However, there is a practice of “double dossier”. One file is compiled for the Court, but the police retain another file in which other information may be contained. As a result, Antigone’s main concern with police detention is what happens before the interrogation, which is not recorded at all.

d. Czech Republic Mikaela Lyskova (League for Human Rights) highlighted the difficulty of conducting research in the Czech Republic due to the difficulty to obtain official information, including through freedom of information requests. The information, in particular statistics, was either poor or not available at all. Defendants can request that their interrogation be AV recorded. However, due to the lack of technical facilities and access to AV recording equipment, the research suggests that most interrogations are, in practice, not AV recorded. Out of 3 persons who were interviewed for the research and who had been interrogated by the police, none had been recorded. Instead, it is common practice to rely on transcripts, even though they are not a verbatim record and produced by the interrogating police officers, who have discretion about how to formulate the statements that are transcribed. There are a number of difficulties with AV recording. When AV recording is done, the police still have to transcribe the whole interrogation. In one instance, it took 60 pages to transcribe a 2-hour interrogation. There is also a problem of availability of technical staff to perform the recording, it is estimated that four persons are required for the purposes of an interrogation that is AV recorded. Beyond resourcing issues, there is also an issue around the motivation of police officers to conduct AV recordings, which can be seen as opening up their practices to scrutiny. However, interviews of victims of sexual offences and minors are AV recorded. There are about 70 equipped recording rooms throughout the country, which are mostly tailored for children, not adults. There is a difficulty in recognising suspects as being vulnerable.


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PART 2: THEMATIC DISCUSSIONS 5. AUDIO-VISUAL RECORDING OF QUESTIONING OF CHILDREN AND VULNERABLE PERSONS In this session the speakers presented existing international and regional (EU) standards and practices relating to the questioning of children and vulnerable suspects, and addressed the following questions:

1. How can the audiovisual recording of the interrogations of children and vulnerable persons

help safeguard their rights? 2. Does audiovisual recording help support investigative interviewing techniques which are

tailored for children and vulnerable persons? 3. How is audiovisual recording of the interrogations of children and vulnerable persons used

in practice by the investigative authorities?

a. The EU standards (Ingrid Breit, European Commission)

In 2013, the Commission proposed a specific set of rules to enhance the protection of children involved in criminal proceedings. The negotiations were difficult, but the Directive was finally adopted in May 2016. The Children’s Rights Directive is the only EU Directive covering all stages of criminal proceedings. The Directive sets out minimum rules and Member States may provide higher standards. The questioning of suspects and accused persons is highly important, it is a delicate situation and often has a decisive impact on the outcome of the case. Children are particularly vulnerable because they don’t understand everything that they’re told. The AV recording of interrogations can protect not only suspects but also law enforcement authorities. As such, the Directive provides for a qualified requirement to AV record children’s interviews. The Commission had initially proposed mandatory AV recording, but Member States were opposed, mainly because of technical and cost reasons, but also on the ground that experience with AV recording was not positive, in particular that AV recording was intimidating for children. The discussions also addressed the link between the presence of a lawyer during the interrogation and AV recording. Some Member States argued that there would be no necessity of the former if the latter is implemented, whilst the Commission held that the two have different roles. However, the link can be found in the Directive: Article 9 provides that “Member States shall ensure that questioning of children by police or other law enforcement authorities during the criminal proceedings is audio-visually recorded where this is proportionate in the circumstances of the case, taking into account, inter alia, whether a lawyer is present or not and whether the child is deprived of liberty or not, provided that the child's best interests are always a primary consideration”.4 The outcome is that AV

4 See also Recital 42: “Children who are suspects or accused persons in criminal proceedings are not always able to understand the content of questioning to which they are subject. In order to ensure sufficient protection of such children, questioning by police or by other law enforcement authorities should therefore be audio-visually recorded where it is proportionate to do so, taking into account, inter alia, whether or not a lawyer is present and whether or not the child is deprived of liberty, it being understood that the child's best interests should always be a primary consideration. This Directive does not require Member States to make audiovisual recordings of questioning of children by a judge or a court.” Available at: https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32016L0800&from=EN.

https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32016L0800&from=EN



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recording should be provided if the situation requires it, in view of the child’s best interest, but falls short of mandating it. Therefore, questioning for the sole purpose of identification of the child is not covered by this provision. Moreover, AV recording only relates to police and law enforcement authorities, not including interviews by judges or in court. When AV recording is not done, alternative recording means should be put in place. Article 14 prohibits the dissemination of recordings (in order to prevent leaks and sensationalizing an investigation for public consumption, or getting a person who cooperates into “trouble” with the outside world) and Article 20 requires Member States to train law enforcement authorities and judges on AV recording and on questioning techniques: “Member States shall ensure that staff of law enforcement authorities and of detention facilities who handle cases involving children, receive specific training to a level appropriate to their contact with children with regard to children's rights, appropriate questioning techniques, child psychology, and communication in a language adapted to the child”. The transposition deadline is 11 June 2019. Beyond the Children’s Directive, vulnerable persons suspected or accused in criminal proceedings were addressed by the Recommendation of 27 November 2013.5 Although it is not legally binding, it was at the time the only politically viable option. Point 13 recommends the use of AV recording for vulnerable persons: “Any questioning of vulnerable persons during the pre-trial investigation phase should be audio-visually recorded”. In general, feedback from Member States has been very limited. The Commission reported that it will look into what specific national rules apply and will possibly consider proposing binding legislation. It is also important to flag that the EU Victims’ Rights Directive of 25 October 20126 also foresees AV recording for children victims at Article 24(1)(a): “interviews with the child victim may be audiovisually recorded and such recorded interviews may be used as evidence in criminal proceedings”. The Commission has received mixed feedback about the implementation of this provision. Generally, AV recording of interviews has been gradually introduced into EU law, but there remains a lot of divergence amongst EU Member States. What’s important now is to recognise both the benefits and challenges involved. The EU is moving in the right direction but there’s lot to be done yet and the ProCam project raises awareness about this issue.

b. The importance of police interviewing techniques Tallulah Hewett (International Juvenile Justice Observatory) explained that children are known to be more vulnerable than the general population when it comes to criminal proceedings. International standards on how to conduct interviews include the 2005 ECOSOC Guidelines on Justice and mostly concern child victims and witnesses, rather than child suspects. The IJJO has advocated for AV

5 Available at: https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32013H1224(02)&from=en. 6 Available at: https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32012L0029&from=EN.

http://www.un.org/en/ecosoc/docs/2005/resolution%202005-20.pdf

https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32013H1224(02)&from=en



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recording of children questioning in a 2016 report on torture, which found AV recording to be a fundamental safeguard against torture. In its 2016 report “Listen to the Child”, the IJJO showed that children are repeatedly interviewed about the same subject by police officers, social workers, investigators, experts, judges, etc., most of which have little child-oriented knowledge, and are not capable of correctly interviewing children. The project aims to improve the situation of child victims or witnesses of crime in legal proceedings through an integrated approach and a personalised assessment of the specific needs of each child.7 Good practices were found in Northern Ireland and Finland, specifically concerning the Barnahus project, which provides services for children victims of sexual and other violence. Before the interview with the child, the police and the centre personnel meet to discuss the child’s overall situation, before the forensic interview of the child. This practice could be extended to child suspects. Gavin Oxburgh (Newcastle University) explained, that based on his own experience as a former member of the UK’s military police force, most police officers link interviews with confessions. Gavin recounted his personal experience of making a suspect confess to a crime that that person has not committed. The word “interrogation” holds massive negative connotations and should be replaced by the concept of “interview”. This would help towards putting an end to psychological torture mechanisms used in interviews, which still happens all too often in the UK. In 2018, the Council of Europe issued a practitioner’s guide on investigative interviewing which highlights the necessity of AV recording police interviews. AV recording of the interrogations of children and vulnerable persons can help safeguard their rights if interviewing is based on empirically-proven methods. There are tools available such as the Forensic Interview Trace (FIT™), a secure, cloud-based application designed to record the structure, content and characteristics of forensic interviews involving victims, witnesses and suspects of crime. Gavin also referred to the Griffiths Question Map, a forensic tool for expert witnesses' assessments of witnesses and victims' statements. AV recording can also improve the reliability of evidence obtained through interviews. In England and Wales, AV recording of interviews of children and vulnerable people has been in place since 1994. It was a difficult start but within three years, police officers had accepted the practice. As a result, handwritten reports are not made anymore. This appears to be key to making AV recording effective, because where two records are available, stakeholders may be reluctant to watch the AV recording. Trond Mycklebust (Assistant Chief of Police, Norway) highlighted the need for training of police officers in interviewing techniques. The International Investigative Interviewing Research Group (iIIRG) is a group (founded with Gavin) which brings together 450 members, practitioners and academics from 28 different countries, on interviewing techniques. The aim is to understand and share what works in interviewing techniques, including of children. The next event will be held in Norway on 24 – 28 June 2019. Today, Europol, INTERPOL and others are having discussions about how to interview suspects and accused persons. More than solving technical issues, there is a need to change mindsets among the

7 For more information, see: https://www.oijj.org/en/listentothechild-introduction.

http://www.bvs.is/media/forsida/Barnahus,-an-overview.pdf

https://rm.coe.int/guide-to-investigative-interviewing/16808ea8f9

https://www.oijj.org/en/listentothechild-introduction


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criminal justice actors. There is no real technical obstacle to AV recording. Recordings can be saved on a server, there is no need for DVDs, and shown in Court without the necessity of written transcripts. The key is the change in methods and attitudes via training. In Norway there is a Bachelor in policing and now also a Masters course in investigative techniques. The younger generation of police officers is used to AV recording. Mr Focardi (Prosecutor, juvenile court, Florence) has been specialising in juveniles over the past two years. In Mr Focardi’s view, obtaining a confession is not the objective of a prosecutor when interviewing a juvenile suspect in Italy. There are many guarantees in place in the Italian legal system. There is genuine concern about the risk of contamination of evidence and AV recording is, in this respect, an important safeguard. 6. AUDIO-VISUAL RECORDING: A SOURCE OF MORE RELIABLE EVIDENCE? This panel discussion focused on how audiovisual recording can help improve the reliability of

evidence gathered in the investigative phase of criminal proceedings.

a. AV recording and torture prevention

Alyson Kilpatrick (former Human Rights Advisor to the Policing Board of Northern Ireland) explained that in Northern Ireland, during the 70s and 80s, allegations of police torture, especially of terrorism suspects (“high-value detainees”), were rife. For years, the authorities dismissed such allegations as terrorist propaganda or downplayed the extent of such abuse through the “rotten apple” narrative. At the time, there was very little independent oversight of police officers. Allegations of violence were only sometimes pursued through civil lawsuits but there was no effective complaints mechanism. In many cases, some compensation was provided to the victims quickly to avoid a trial. In brief, one police officer said: “there was nothing to keep us honest”. It is only more recently that judges began questioning the evidence that is being presented by police officers. AV recording, which was introduced in 1999 in Northern Ireland, may not be sufficient to prevent ill-treatment outside the interview, but it can still reveal bruises and other undue coercion. It brings light to interrogations which progressively shifted police mindsets. However, AV recording as a mechanism for torture prevention can only work as part of a broader package of human rights reforms, including: (1) human rights monitoring; (2) closer oversight of police conduct; (3) unannounced visits of police stations; and (4) independence of medical forensic expertise. Cameras catch the police officers who do not change and thanks to the possibility of accessing the recording, there is evidence as to whether abuse took place. By contrast, a written transcript does not reveal aggressive interview. Further, recordings may reveal conversations that have been held off camera. Antonella Dionisi (Italian National Prevention Mechanism) explained that in Italy, there is a very narrow use of AV recording, despite the fact that it is an important safeguard against mistreatment and abuse by police. During its unannounced visits to detention centres, the NPM does not ask about the availability of AV recording. The NPM is currently looking to ask the Italian authorities to develop guidelines on how to investigate alleged ill-treatment, and as part of that whether AV recording should be considered.


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There is also, in this respect, a need to consider the right to privacy of the suspect or accused person.

b. Reliability of evidence Alyson Kilpatrick explained that AV recording has had a major and positive impact on the detainees, and allegations of ill-treatment by the police have drastically diminished. The introduction of AV recording of interrogations as part of a package of reforms has resulted in more reliable prosecutions and has been welcomed by all criminal justice stakeholders, including the police, in whom public trust is at an all-time high. Antonella Dionisi explained that AV recording is a key element to ensure the reliability of evidence and, to a certain extent, prevent abuses, along with other measures such as access to places of detention and unannounced visits. The NPM finds it important to look more holistically at the whole environment where the interrogation takes place, beyond the interrogation itself. For instance, it is very important to look at what happens before the recorded interrogation takes place, for instance in the police car taking the suspect into custody or at the moment of arrest. 7. AUDIO-VISUAL RECORDING AS A SAFEGUARD FOR THE PROCEDURAL RIGHTS OF DEFENDANTS?

This panel brought together defence practitioners (and members of Fair Trials’ Legal and Experts Advisory Panel) from different jurisdictions to discuss the links between audiovisual recording and procedural rights:

1. What are the benefits of audiovisual recording for the defence? 2. How does audiovisual recording of police interrogations strengthen the procedural rights of

the suspect and the accused in criminal proceedings? 3. In light of the DPP v Barry Doyle judgment of April 2017, in which the Irish Supreme Court

ruled that suspects were not entitled to legal representation during electronically recorded

interviews, is there a risk that audiovisual recording weaken the right of access to a lawyer?

Constance Ascione Le Dreau (Attorney at the Paris Bar, France) explained that AV recording is only compulsory in France in respect of interrogations of children and adults when accused or suspected of serious crimes. The obligation is therefore limited in scope. As such, does it actually serve as a procedural safeguard? The Court of Cassation ruled in the past that the failure to make an AV recording as a result of a technical issue, despite the existence of a written transcript, constitutes of itself a potential violation of the interests of the defence. AV recording provides evidence and is beneficial both because it helps defence lawyers to trust the police and because it represents a crucial deterrent against abuse. It is important to emphasise that it is because we want to trust the police that we need AV recording. In addition, AV recording also enhances the effectiveness of the right to remain silent and other procedural rights, including the right to translation and interpretation. In one case, in fact, AV recording allowed the defence to prove that no adequate interpretation had been provided to a Nigerian woman who spoke a local dialect and kept indicating that she could not understand the interpreter.


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AV recording is a safeguard for the accuracy of transcripts of interrogations and should not be pitted against other procedural safeguards, in particular legal representation during interrogations, but should instead be applied in conjunction with them. Balazs Csire (Attorney, Hungary) explained that interviews have a fact-finding purpose and AC recording is an important complement to the right to a lawyer during an interrogation. As a defence lawyer, Balazs felt that AV recording tapped into a tension which is intrinsic to the lawyer’s role, i.e. on the one side hiding details about the suspect’s past which could damage the defence strategy, and on the other side eliciting a testimony which is as accurate as possible. AV recording could go against the defendant because it provides a full record, where the defence lawyer could previously, off the record, discuss with the police which of the client’s statements were most relevant or important. Further, investigators can make mistakes like anyone else, and AV recording guards against such professional errors. However, AV recording does not guard against what happens “off record” outside the scope of the interview. Dara Robinson (Solicitor, Ireland) explained that the right of access to a lawyer is constitutionally guaranteed in Ireland and AV recording was introduced in 1987 in Ireland. However, a decision of the Irish Supreme Court in 1999 (Lavery), announced clearly and firmly, for the first time, that suspects were not entitled to have their lawyers present while they were being interviewed, although they had a constitutional right to consult from time to time during detention. In the DPP v. Doyle case of 2017, the Supreme Court considered that where an interrogation is AV recorded, suspects are not entitled to representation during interviews. Judge McKechnie made a dissent focussed on “the centrality that questioning has assumed in the evidence gathering process”. Seen from both a pragmatic and a purely constitutional viewpoint, he concluded, “the admissibility of these central pieces of evidence [i.e. admissions during interview] will be much more readily established where the highest protection has been afforded to the rights of the suspect during the interview process”. In practice, in Ireland, interrogations during custody take place in rooms where there is a fixed chair for the suspect, hidden mics and cameras and sometimes live feeds to the incident room. The interrogation is AV recorded and there is a “scribe” recording the interrogation in writing. The scribe is also a police officer and Dara considered this to be very bad practice, because the transcription of police interviews is often relied upon despite not being always accurate and the AV recording itself is not viewed. The interrogation is only partially recorded, and the transcript often refers to “general discussion”, the content of which is not recorded in writing. 8. A TECHNICAL PERSPECTIVE ON AUDIOVISUAL RECORDING

Mr Stig Knutsen (CEO, Indico Systems AS) gave a practical and commercial perspective from the industry on audio-visual recording, addressing in particular the following questions:

1. What are the different types of equipment, and their reliability from a technical perspective? 2. How important is the set-up of the room where the audiovisual recording takes place, and the

training of the persons who will be operating the equipment? 3. What are the costs involved?

Indico is able to set up discrete AV recording equipment in an interview room or in a side room. The


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recordings are saved and stored on a secure server, and can be accessed via a website. Indico is able to certify the validity of recordings so they are not rejected by the courts. The software provided by Indico allows for a full audit trail (tracking who accesses the recordings and when; diversifying access rights to recordings according to the user; protecting the recordings with passwords) and has functionalities such as anonymising the suspect or accused person, and editing the sound to focus on what the suspect or the police said at any given moment. The software can also turn speech into text, which can be particularly useful for the transcription. Depending on the kind of equipment, a typical set up would cost between 5.000 to 50.000 € per interrogation cell, training excluded. Currently, the biggest market is the UK and the German market is growing in view of the transposition of the Childrens’ Directive. 9. CONCLUSIONS Limited but positive experience The scope of the obligation to AV record interrogations (or interviews) of suspects and accused persons remains limited. Nevertheless, stakeholders with experience of AV recording (including law enforcement practitioners) report positive experience of AV recording. Key deterrent against abuse Participants from across the jurisdictions represented generally shared the view that AV recording is a key deterrent against abuse and undue pressure on people interviewed by the police and other investigating authorities, even if fixed equipment cannot technically cover all the interactions between the police and the suspect from the moment of arrest to the formal interview, leaving many “blind spots” outside the scope of the recording. Moreover, for AV recording to act as an effective deterrent against torture, coercion and undue compulsion, it needs to be incorporated into a broader package of fair trial and other human rights safeguards. When this is not the case, there is a danger that AV recording may be pitted against fair trial rights, such as the right of access to a lawyer (as in the Irish Supreme Court case of DPP v Barry Doyle). Support improved police interviewing techniques AV recording contributes to transparency, which in turn improves public trust in the police and ultimately leads to lasting changes in police behaviour as regards interrogation techniques and procedures. In fact, AV recording supports the shift in the focus of interrogations away from confessions towards interview techniques which seek to determine what actually happened. In this respect, AV recording is an important safeguard against the contamination of interviews and the risk of false confessions. Accurate record of statements made during police interview AV recordings provide more complete, accurate and reliable records of what happened during the

https://www.fairtrials.org/supreme-court-dpp-v-barry-doyle-2017-iesc-1

https://www.fairtrials.org/supreme-court-dpp-v-barry-doyle-2017-iesc-1


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interview than written police reports. In this respect, AV recordings can be relied upon by an accused person to contest statements made by the police or to challenge evidence obtained from an interview (e.g. on the basis of the contamination of the interview); and can equally protect law enforcement authorities against an unfounded argument by the accused person based on coercion. However, the current system in France, which does not give an automatic right to the defence to view the AV recording as part of a “disclosure process”, appears to limit the extent to which defence and other criminal justice actors make use of AV recordings in practice. Towards a legal framework for AV recording The implementation of any obligation to AV record interviews needs to be aimed at reinforcing mutual trust among all the actors involved. As one participant in the event said, “It’s because we want to trust the police [and other law enforcement authorities], that we want AV recording”. Participants suggested that the following elements should form part of a minimum regulatory framework for AV recording:

• Clear guidelines on the timing of the recording (e.g. include statement of rights);

• Robust safeguards to prevent AV recording being pitted against other defence rights, in particular presence and participation of a lawyer during the interview;

• Implement privacy safeguards (e.g. to avoid leaks of interview footage);

• Placing cameras in police stations outside the interview rooms (e.g. in corridors) and body cams on police officers;

• Phase out the use of written police reports to ensure that there is only one record (e.g. counter reluctance of prosecutors/judges/lawyers to watch AV recording);

• Investment in reliable equipment in interview rooms but also in courtrooms to view recordings;

• Training of interviewing officials is fundamental, including in respect of Interviewing techniques.

Next steps The ProCam project partners will be producing and launching national reports in their respective jurisdiction in the Spring of 2019. HHC and Fair Trials will also produce a comparative report, which will be launched at a regional event in Brussels where partners will present findings and recommendations to key EU policy-makers.


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Annex: List of Participants

Name Surname Organisation Country

1. Constance Ascione Le Dreau Avocat France

2. Manon Beaucarne Direction de la protection judiciaire de la jeunesse, Ministère de la Justice

France

3. Laure Baudrihaye-Gerard

Fair Trials EU

4. Ingrid Breit European Commission EU

5. Federica Brioschi Antigone Italy

6. Rebecca Brown Innocence Project US

7. Zoran Buric University of Zagreb Croatia

8. Zuzana Candigliota Attorney Czech Republic

9. Gianluca Cesaro Fair Trials EU

10. Balazs Csire Criminal defense attorney Hungary

11. Tea Dabić HRH Zagreb Croatia

12. Antonella Dionisi Office of international Affair of the Italian NPM

Italy

13. Laure Elmaleh Defence des enfants international (DEI) France

14. Filippo Focardi Deputy Public Prosecutor - Juvenile Justice Italy

15. Karine Gilberg Consultant France

16. Tallulah Hewett OIJJ EU

17. István Horváth Attorney Hungary

18. Alyson Kilpatrick Human Rights Advisor, Northern Ireland Policing Board

Northern Ireland


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Name Surname Organisation Country

19. Ondřej Klabačka Lawyer at the Public Defender of Rights Office

Czech Republic

20. Stig Knutsen Chief Executive Officer, Indico Systems AS Norway

21. Sunčica Kocijan-Putarek County State Attorney Deputie from Varaždin

Croatia

22. Geneviève Lefebvre France

22. Mikaela Lyskova Liga Lidskych Prav (LLP) Czech Republic

23. Ondrej Muka Attorney Czech Republic

24. Trond Myklebust Assistant Chief of Police Norway

25. Gavin Oxburgh Newcastle University UK

27. Martin Pradel Avocat, Betto Seraglini France

28. Dara Robinson Solicitor, GS & Co Ireland

29. Dora Szego Hungarian Helsinki Committee Hungary

30. Anja Tolić Attorney Croatia

31. Dominique Tricaud Attorney France

Documents

MEETING REPORT EXPERIENCE-SHARING EVENT ON … Experience... · Richard A. Leo et al., Promoting Accuracy in the Use of Confession Evidence: ... • AV recording risks trumping other